The application which was filed by the respondent
herein, wad admittedly preferred under Order XXI rule
32(1) of the Code of Civil Procedure. The perusal of sub
Section (1) of Rule 32 of Order XXI Code of Civil
Procedure, would explicitly make it clear that where the
party against whom a decree for specific performance of
contract, or for restitution of conjugal rights, or for an
injunction has been passed, had opportunity of obeying
the decree and has willfully failed to obey it, the decree
may be enforced in the case of a decree for restitution of
conjugal rights by the attachment of his property or, in the
case of specific performance of contract, or for an
injunction by his detention in the civil prison, or by the
attachment of his property, or by both. Therefore, on
careful reading of sub Section (1) of Rule 32 of Order XXI
Code of Civil Procedure make it abundantly clear that
that the Court has jurisdiction to pass the order of
detention in the civil prison, if the decree is for specific
performance of contract, or for an injunction is not
followed, in spite of having opportunity of obeying the
decree, and Judgment Debtor has willfully failed to obey
it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CIVIL REVISION APPLICATION NO. 69 OF 2011
Prakash S/o Bala Dubele,
VERSUS
Janabai W/o Subhash Dubele,
CORAM :- S.S. SHINDE, J.
Judgment Pronounced on :- 3rd August, 2011
Citation: 2011(6)MHLJ 379
2. This Civil Revision Application is filed by the
original plaintiff, challenging the Judgment and Order
dated 14-03-2011, passed by the Jt. Civil Judge, Junior
Division, Kannad, in Regular Darkhast No. 38 of 2004.
3. The respondent herein who is original plaintiff filed
R.C.S. No. 33 of 2001 for relief of permanent injunction
and declaration of partition deed as not binding on
decree holder along with relief of declaration of
ownership. The Trial Court decreed R.C.S. No. 33 of
2001, on 05-08-2002. The original defendant has filed
Regular Civil Appeal No. 219 of 2002 before the
Appellate Court. The Appellate Court dismissed the
appeal, vide its order dated 29-011-2003, and confirm
the decree passed by the Trial Court. There was another
suit R.C.S. No. 117 of 2003, which was filed by original
defendant No. 2 against plaintiff, and same suit was also
dismissed on 22-06-2006. Thereafter, Second Appeal
was filed by the original defendants, and this Court did
not entertain the Second Appeal, as the delay for filing
Second Appeal was not condoned. For taking
possession of suit property, the Original plaintiff has filed
Regular Dharkhast No. 38 of 2004. The said Regular
Dharkhast No. 38 of 2004 came to be allowed by the Jt.
Civil Judge, Junior Division, Kannad. It is directed that
the Original defendant No. 1 i.e. Prakash S/o Bala
Dubele and original defendant No. 2 i.e. Sandeep S/o
Bala Dubele be detained in civil prison for a period of one
month. Being aggrieved by the same the original
defendant Nos. 1 & 2 have filed this Civil Revision
Application.
4. The learned counsel appearing for the applicant
submit that the Executing Court failed to appreciate that
the applicants have not deliberately and intentionally
disobeyed the decree alleged to have been disobeyed by
the present applicants. It is further submitted that the
applicants are illiterate and rustic villagers, and as such
are not conversant with procedural aspect of law, which
has to be followed in Court proceedings. It is further
submitted that the provisions of Order XXI rule 32(1) of
the Code of Civil Procedure has to be invoked in
exceptional circumstances. Even if the applicants have
disobeyed the decree, the provision of Order XXI rule
32(1) of the Code of Civil Procedure has provided
remedy to attach and sale the property of Judgment
Debtor. It is further submitted that the Executing Court,
ought to have considered that without satisfying other
modes of execution, the issue of warrant of arrest is not
proper exercise of discretion on the part of the Executing
Court. It is further submitted that the Executing Court
failed to consider that, the respondent herein has failed to
prove actual obstruction, but has based its finding holding
that as the applicants are denying possession of the
respondent herein, and as such it is to be presumed that
the applicants are causing obstruction with possession,
hence committed breach of the decree. It is further
submitted that the Executing Court ought to have
considered that the liberty of a person cannot be taken
away for mere unintentional negligence on his part. It is
further submitted that the applicants herein were under
impression that their Second Appeal is pending in this
Court. It is further submitted that the applicants have
filed undertaking before this Court and contended that
they will hand over the possession of the land in question
to the respondent, and accordingly, they have handed
over the possession of the suit land. Therefore, the
learned counsel appearing for the applicants, relying on
grounds in Civil Revision Application, annexures there to
would submit that this Civil Revision Application may be
allowed.
5. On the other hand learned counsel appearing for
the respondent, relying upon affidavit in reply filed on
record, would submit that the land Gat No. 292,
admeasuring 2 Hector 91 Are, was recorded in the name
of Prakash Bala Dubele. The said Prakas Bala Dubele
sold 40 Are land from Gat No. 292, to the present
respondent on 20-07-1998. In order to deprive the
legitimate right of ownership and possession of the
present respondent, the said Prakash Dubele executed
partition deed of the entire land in favour of his brother
i.e. Sandeep Dubele on 03-03-1999 i.e. after the sell of
40 Are land, in favour of the present respondent. The
applicants Sandeep Dubele and Prakash Dubele
conspired together and got mutated the land in favour of
Sandeep Dubele by submitting partition deed before the
revenue officer, and got sanctioned the mutation entry
No. 1003 in favour of Sandeep Dubele.
It is further submitted that there was
disturbance, interference and hindrance in the peaceful
possession of the respondent by the applicants herein.
The respondent i.e. original plaintiff had filed R.C.S. No.
33 of 2001 before the Jt. Civil Judge, Junior Division,
Kannad for perpetual injunction, declaration of ownership
and cancellation of sale deed, in respect of suit land.
The Trial Court has decreed the suit on 05-02-2002
against the applicants, thereby declaring that the
respondent herein is the owner of 40 Are land, out of
land Gat No. 292, vide registered sale-deed dated
20-07-1998 i.e. Exhibit 47, and it is further declared that
the partition deed dated 03-03-1999 i.e. Exhibit 48 is not
binding on the present respondent. The Trial Court
perpetually restrained the defendant from disturbing the
peaceful possession of the deponent over 40 Are land,
out of land Gat No. 292, situated at Village Wakad.
6. The applicants did file appeal bearing R.C.A. No.
219 of 2002, challenging the Judgment and Decree of
the Trial Court, before the District Court, Aurangabad.
The said appeal came to e dismissed on 19-11-2003.
The applicant No. 1 i.e. Sandeep preferred Second
Appeal (ST) No. 9403 of 2007 along with Civil Application
No. 7157 of 2007 for condonation of delay of 260 days in
filing the Second Appeal. This Court has dismissed the
Second Appeal.
7. It is the contention of the learned counsel
appearing for the respondent that, inspite of dismissal of
Second Appeal filed by the applicant No. 2 i.e. Sandeep,
the applicants instead of handing over the possession of
the land in question to the respondent continued illegal
possession of the suit land, thereby deprive the decree
holder from enjoying the fruits of the suit property, though
the revision applicants were perpetually restrained from
interfering in the possession of the respondent.
8. It is further submitted that during the pendency of
the execution proceedings, the present respondent has
filed application under Order XXI rule 32(1) of the Code
of Civil Procedure , and the Trial Court has rightly passed
the order on 14-03-2011, directing that the applicants be
detained in civil prison. It is further submitted that the
Regular Dharkhast No. 28 of 2004 is pending from last 7
to 8 years and the respondent is fighting the legal battle
against the applicants from last eleven years. The
applicants were disturbing the peaceful possession and
enjoyment of the deponent in clear disregard to the
Judgment and Decree of the Trial Court as well as well
as the Appellate Court, and this act of the applicants
amounts to contempt of Court. It is further submitted that
the contention of the applicants before this Court that
they will hand over the possession of the suit land to the
respondent is itself indicative fact that, in spite of
dismissal of Second Appeal of the applicants, they are
continued themselves illegally in possession of the suit
land. Therefore, when the applicants themselves have
admitted that they are in illegal possession of the suit
land, the order impugned in this Civil Revision
Application, directing the detention of the applicants does
not suffer from any jurisdictional error, and therefore, this
Court may not interfere in the impugned Judgment and
Decree passed by the Jt. Civil Judge, Junior Division,
Kannad.
9. I have given thoughtful consideration to the rival
submissions, and also perused the grounds taken in Civil
Revision Application annextures there to, and impugned
Judgment and Order assailed in this Civil Revision
Application, and also heard the respective counsel at
length. Some undisputed facts in the present case are
that R.C.S. No. 33 of 2001 was filed for relief of
permanent injunction and declaration of partition deed as
not binding on Decree Holder / present respondent along
with relief of declaration of ownership. Said suit was
decreed on 05-08-2002. The Judgment Debtor i.e.
present applicants proceeded to challenge said decree
before Appellate Court in Appeal bearing R.C.A. No. 219
of 2002, and the Appellate Court vide its order dated
29-11-2003, confirming decree passed by the Trial Court.
There was another proceeding as R.C.S. No. 170 of
2003, which was filed by Sandeep Dubele against
present respondent. Same suit was dismissed and
appeal against the same also dismissed as R.C.A. No.
183 of 2005, vide its order dated 22-06-2006, and
Second Appeal against said decree was not entertained,
as delay in filing the Second Appeal was not condoned
by the High Court.
10. The provisions of Order XXI rule 32(1) of the Code
of Civil Procedure reads thus :-
“ Rule 32(1) :- Decree for specific
performance for restitution of
conjugal rights, or for an injunction –
(1) Where the party against whom a
decree for the specific performance of a
contract, or for restitution of conjugal
rights, or for an injunction, has been
passed, has had an opportunity of
obeying the decree and has wilfully
failed to obey it, the decree may be
enforced in the case of a decree for
restitution of conjugal rights by the
attachment of his property or, in the
case of decree for the specific
performance of a contract, or for an
injunction by his detention in the civil
prison, or by the attachment of his
property, or by both.”
11. The application which was filed by the respondent
herein, wad admittedly preferred under Order XXI rule
32(1) of the Code of Civil Procedure. The perusal of sub
Section (1) of Rule 32 of Order XXI Code of Civil
Procedure, would explicitly make it clear that where the
party against whom a decree for specific performance of
contract, or for restitution of conjugal rights, or for an
injunction has been passed, had opportunity of obeying
the decree and has willfully failed to obey it, the decree
may be enforced in the case of a decree for restitution of
conjugal rights by the attachment of his property or, in the
case of specific performance of contract, or for an
injunction by his detention in the civil prison, or by the
attachment of his property, or by both. Therefore, on
careful reading of sub Section (1) of Rule 32 of Order XXI
Code of Civil Procedure make it abundantly clear that
that the Court has jurisdiction to pass the order of
detention in the civil prison, if the decree is for specific
performance of contract, or for an injunction is not
followed, in spite of having opportunity of obeying the
decree, and Judgment Debtor has willfully failed to obey
it.
12. In the present case, in R.C.S. No. 33 of 2001
which was filed by the respondent herein, by Judgment
and Order dated 5-08-2002, came to be allowed by the
Jt. Civil Judge, Junior Division, Kannad. The order
passed by the Jt. Civil Judge, Junior Division, Kannad in
R.C.S. No. 33 of 2001 reads thus :-
“ ORDER
1. Suit is hereby decreed with cost.
2. It is hereby declared that plaintiff
is owner of 40 R land out of Gut No.
292 vide registred sale-deed dated
20-07-1998 Exh. 47 and partition deed
dated 03-03-199 Exh. 48, is not binding
on the plaintiff.
3. Defendants are hereby
perpetually restrained from the
disturbing peaceful possession of
plaintiff over 40 R land out of Gut No.
292 of Village Wakad.
Decree drawn up accordingly.”
13. Therefore, the competent Court declared that the
plaintiff is owner of 40 Are land, out of Gat No. 292, vide
registered sale-deed dated 20-07-1998, Exh. 47 and
partition deed dated 03-03-1999 Exh. 48 is not binding
on the plaintiff. From reading clause three (3) of the
order reproduced here-in-above, the applicants herein
i.e. defendants in the said suit are perpetually restrained
from the disturbing peaceful possession of the plaintiff
over 40 Are land, out of Gut No. 292 of Village Wakad.
The appeal filed by the applicants, challenging the said
Judgment and Order in R.C.S. No. 33 of 2001, came to
be dismissed, thereby confirming the decree passed by
the Trial Court. There was another proceeding as R.C.S.
No. 170 of 2003 which was filed by applicant No. 2 herein
against the decree holder i.e. present respondent herein.
The same suit was also dismissed, and appeal against it
was also dismissed, and further Second Appeal against
the said decree was not entertained by the High Court,
as the application for condonation of delay, in filing the
Second Appeal came to be rejected in the year 2007.
Therefore, in my considered view, it was possible for the
applicants herein to obey the decree under execution.
The execution proceeding is filed in the year 2004.
There was sufficient and considerable time for the
applicants herein to obey the decree passed by the
competent Civil Court. However, it appears that the
applicants remained in possession of the suit property
illegally and thereby continued to disobey the Judgment
and Order / Decree passed by the Jt. Civil Judge Junior
Division, Kannad. Therefore, the Executing Court has
rightly entertained the application filed by the original
decree holders under Order XXI Rule 32 (1) of Civil
Procedure Code, and after proper appreciation of the
material placed on record, has exercised the jurisdiction
vested, and therefore, in my view, there is no any
jurisdictional error or the concerned Court has not
exceeded its jurisdiction or while deciding the application
filed by the decree holders under Order XXI rule 32(1) of
the Code of Civil Procedure, has not recorded any
perverse finding and has not committed any irregularities.
The concerned Court had jurisdiction to entertain and
pass such orders, under Order XXI rule 32(1) of the Code
of Civil Procedure. The admission of the applicants
herein and under taking filed before this Court that they
will hand over the possession of the suit property to the
respondent, is clearly suggestive of the fact that, the
applicants have illegally retained the possession of the
suit property in spite of specific order / decree which has
perpetually restrained them from disturbing peaceful
possession of plaintiff over 40 Are land, out of Gut No.
292 of Village Wakad. The said decree is passed on
05-08-2002, and execution petition filed by the
respondent is pending from 2004. The appeal which was
filed by the applicants, challenging the decree came to be
dismissed in the year 2003 itself. In other proceedings
i.e. Second Appeal of the applicants was not entertained,
since application for condonation of delay came to be
rejected in the year 2007. Therefore, in my opinion, the
applicants herein were under obligation to honor the
decree passed by the competent Civil Court, in spite of
having opportunity to them at least from dismissal of their
Second Appeal in the year 2007, they had sufficient and
considerable time to honor the decree. However, they did
not do so. Therefore, in my considered opinion, that the
Judgment and Order impugned in this Civil Revision
Application needs no interference in the revisional
jurisdiction. The perusal of the impugned Judgment and
Decree clearly show that the Executing Court has given
elaborate reasons and relying on certain authoritative
pronouncements of this Court, has reached to the correct
conclusion. Therefore, the impugned Judgment and
Order stands fully confirmed. The decree holder cannot
be deprived for years together from enjoying fruits of the
decree. Civil Revision Application is devoid of any merits
same stands dismissed. Rule stands discharged.
[ S.S. SHINDE, J. ]
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